Opinion
No. 35307.
April 26, 1943.
1. CARRIERS.
The duties of a common carrier of freight or passengers may be delegated to an independent contractor except so far as concerns duties owed to passengers or in the handling or delivery of freight, or where contractor is required or allowed by the contract to perform functions or employ instrumentalities which in the nature thereof are inherently dangerous to the public.
2. AUTOMOBILES.
The operation of an ordinary automobile is not in its nature dangerous so as to preclude delegation by common carrier of duties involving the operation of such automobile.
3. AUTOMOBILES.
Where a common carrier of motion picture film in an emergency engaged a theater operator to deliver a film in town near his home for agreed compensation and theater operator when he reached home, despite agreement to make delivery himself, gave film to a girl to deliver, carrier was not liable to third persons for girl's negligent operation of her automobile while completing delivery, whether theater operator was an independent contractor or servant of carrier.
4. MASTER AND SERVANT.
Though master is liable under doctrine "respondeat superior" for tortious acts of servant done in the scope and course of his employment, where the servant was employed by master, master is not liable for torts of a substitute employed by the servant who had neither express nor implied authority from master to select such a substitute.
APPEAL from chancery court of Sunflower county, HON. J.L. WILLIAMS, Chancellor.
J.O. Eastland, of Ruleville, C.C. Pace, of Cleveland, and J.J. Breland and R.L. Cannon, both of Sumner, for appellant.
The question for decision is this: Defendants, common carriers by motor vehicle, acting under their franchise, are under the duty to transport a film in interstate commerce from Memphis, Tennessee, to Moorhead, Mississippi. To suit their convenience they deliver this film to C.J. Collier and Bim Jackson, instructing Collier to carry the film in his automobile to Ruleville, Mississippi, and there turn it over to Jackson, who is instructed by the defendants personally to carry the film to its destination, Moorhead, in his, Jackson's, automobile. The film reaches Ruleville, where Jackson transfers it to his automobile; but, instead of continuing the transportation himself, Jackson turns the car and the film over to Miss Linda Young Pittman, instructing her to carry the film to its destination, the Moorhead Theater. Miss Pittman sets out in Jackson's car, carrying the film. While she is driving over Highway 49 W, and over road covered by defendants' franchise, she negligently runs into the rear of a wagon in which complainant is riding, demolishes the wagon, and inflicts serious personal injuries on the complainant. Having thus set in motion this piece of freight, moving in interstate commerce, by entrusting its transportation to Collier and Jackson, can the defendants absolve themselves from liability for Miss Pittman's negligence by asserting that they never employed Miss Pittman, and never authorized Jackson to employ her, to carry the film?
Defendants at the time of the accident were common carriers.
Part II of the Interstate Commerce Act, U.S.C.A., Title 49, Ch. 8, Secs. 301-327 (See 1942 Supplement, pp. 102-172); Keystone Warehousing Co. v. Public Service Commission (Pa.), 161 A. 891; State v. Rosenstein (Iowa), 252 N.W. 251.
A common carrier cannot delegate to an independent contractor or to any one else its duty to conduct its business of transportation with safety to the public.
Yazoo M.V.R. Co. v. Gordon, 184 Miss. 885, 186 So. 631; Emerson v. Park (Texas), 84 S.W.2d 1100; Interstate Motor Freight Corp. v. Beecher (Ohio), 174 N.E. 27; Cotton v. Ship-By-Truck Co. (Mo.), 85 S.W.2d 80; Duncan v. Evans (Ohio), 17 N.E.2d 913; Duncan v. Evans (Ohio), 20 N.E.2d 729; Aetna Casualty Surety Co. v. Prather (Ga.), 2 S.E.2d 115; Stickel v. Erie Motor Freight (Ohio), 6 N.E.2d 15; Liberty Highway Co. v. Callahan (Ohio), 157 N.E. 708; Taylor v. Oakland Scavenger Co. (Calif.), 110 P.2d 1044; Bates Motor Transport Lines v. Mayer (Ind.), 14 N.E.2d 91; Dixie Stage Lines v. Anderson (Ala.), 134 So. 23; 14 R.C.L. 102, Sec. 38; 23 A.L.R. 1003; 28 A.L.R. 194, Sec. 26; 28 A.L.R. 196, Note 1; 28 A.L.R. 123, 124, Note 1; 28 A.L.R. 126, 127, Notes 2 and 3; 87 A.L.R. 788, case note.
If an agent or employee of a common carrier in charge of an instrumentality of transportation used in the business of the carrier, without authority and against the instruction of the carrier, turns such instrumentality over to one not employed by the carrier, the carrier is liable for any negligent handling of such instrumentality by the one to whom it has been so turned over.
Aetna Casualty Surety Co. v. Prather (Ga.), supra; Lakin v. Oregon Pac. R. Co. (Ore.), 15 P. 641; U.S.C.A., Title 49, Sec. 303 (19), 1942 Supp. 111.
Brewer Sisson, of Clarksdale, Neill, Clark Townsend, of Indianola, and Watkins Eager, of Jackson, for appellee.
There is no liability upon the Film Transit Company, appellee, for the negligence of the servant of an independent contractor.
Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; McDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 147 So. 315; Yazoo M.V.R. Co. v. Gordon, 184 Miss. 885, 186 So. 631; Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258; Primos v. Gulfport Laundry, 157 Miss. 770, 128 So. 507; Harrison v. Roy, 39 Miss. 396; Graham v. State, 71 Miss. 208, 13 So. 883; City of Pascagoula v. Carter, 136 Miss. 750, 101 So. 687; Item Co., Ltd., v. Shipp, 140 Miss. 699, 106 So. 437; Grace v. Railroad Co. (Tenn.), 89 S.W.2d 355; Duncan v. Evans, 20 N.E.2d 729; Taylor v. Oakland Scavenger Co. (Calif.), 110 P.2d 1044; Marion Machine, Foundry Supply Co. v. Duncan (Okla.), 101 P.2d 813; Evans v. Bryant (Tex.), 29 S.W.2d 485; Stickel v. Erie Motor Freight (Ohio), 6 N.E.2d 15; Cotton v. Ship-By-Truck Co. (Mo.), 85 S.W.2d 80; Emerson v. Park, 84 S.W.2d 1100; Bates Motor Transport Lines v. Mayer, 14 N.E.2d 91; Aetna Cas. Co. v. Prather (Ga.), 2 S.E.2d 115; Liberty Highway Co. v. Callahan (Ohio), 157 N.E. 709; Duncan v. Evans (Ohio), 20 N.E.2d 729; Orange v. Pitcairn, 280 Ill. App. 566; State v. Flagg, 75 Mont. 424, 242 P. 1023; Com. v. White, 260 Mass. 300, 157 N.E. 597; Restatement of the Law of Torts, "Negligence," par. 427; Restatement of the Law of Torts, par. 428; 1 Blashfield's Cyc. Auto. Law Prac., par. 521; 14 R.C.L. 102, par. 38; 39 C.J., "Master and Servant," pp. 1336-39; 112 A.L.R. 93.
Assuming that the relationship of master and servant existed between Bim Jackson and Film Transit Company, still the employment by Bim Jackson of Linda Young Pittman was beyond the scope of the employment of the said Jackson and no master (including a common carrier) is liable for the negligence of an assistant employed by its servant when the employment of a substitute is beyond the scope of the authority of the servant. Delegated authority cannot be delegated contrary to instructions so as to make the principal liable for the negligence of the sub-agent in the absence of reliance upon apparent authority.
Great Atlantic Pacific Tea Co. v. Compton, 164 Miss. 553, 145 So. 105; Partee v. Partee, 114 Miss. 577, 75 So. 438; Miller v. Teche Lines, 175 Miss. 351, 167 So. 52; Fairchild v. New Orleans N.E.R. Co., 60 Miss. 931; Haluptzok v. Great Northern R. Co., 55 Minn. 446, 448, 57 N.W. 144, 26 L.R.A. 739; Buisson v. Potts (La.), 151 So. 97; Simon v. City Cab Co., Inc., (C.C.A.D.C.), 78 F.2d 506; Lakin v. Oregon P.R. Co. (Ore.), 15 P. 641; 39 C.J., "Master Servant," 1272; 13 C.J.S., "Carriers," 1278; 2 Am. Jur., "Agency," 154-155; 5 Blashfield's Cyc. Auto. Law Prac., par. 3019.
Argued orally by R.L. Cannon, for appellant, and by Ed. C. Brewer and Elizabeth Hulen, for appellee.
Appellee, a partnership, in Memphis, Tennessee, was engaged, under common carrier certificates, later to be mentioned, in the business of transporting motion picture films to and from theatres over a large territory, including the larger part of this state. These films were delivered at night. About 1:30 p.m. on October 2, 1940, appellee learned that a film due to have been delivered to Moorhead, Miss., the night before had failed of delivery, and appellee began at once to arrange to send the film by one of its own trucks to Moorhead so as to reach there by 7 p.m. While this was being arranged, a theatre operator named Jackson, and whose place was at Ruleville only twenty-two miles from Moorhead, happened to be in appellee's office in Memphis, and inasmuch as Jackson was departing at once for Ruleville, it was agreed between appellee and Jackson that the latter, for a stipulated compensation would take the film to Ruleville and thence to Moorhead, which, as stated, was only twenty-two miles further.
Appellee's witnesses testified, and we think the trial court was well justified in accepting their testimony as true, that it was distinctly understood that Jackson himself was to make the delivery, and that it was the firm agreement that no other person was to be entrusted with it. Nevertheless, when Jackson reached Ruleville, he placed the film in the charge of a seventeen-year-old girl with directions to her to deliver it to Moorhead. In the trip from Ruleville to Moorhead the girl negligently drove her automobile into the rear of a wagon in which appellant was riding, inflicting severe injuries for which appellant sued appellee but was denied recovery by the trial court.
The duties of a common carrier of freight or passengers may be delegated to an independent contractor except (1) so far as concerns duties owed to passengers or in the handling and delivery of freight, or (2) when the contractor is required or allowed by the contract to perform functions or to employ instrumentalities which in the nature thereof are inherently dangerous to members of the public. There was no damage in the case at bar to the freight, and, under the decisions in this state, the operation of an ordinary automobile is not in its nature dangerous. Hence, there is no liability against appellee if Jackson is to be considered as an independent contractor.
And the same result must follow under the view that Jackson was a servant or employee of appellee. The chancellor found from the evidence, as already mentioned, that it was distinctly understood between appellee and Jackson that he himself, and not some other person to be selected by him, was to make the delivery at Moorhead. The rule in this state, and in all states so far as we have traced it, is that a master is liable under the doctrine respondeat superior for the tortious acts of a servant done in the scope and course of his employment, when the particular servant has been employed by the master, when the master has had the privilege of choice, but not for the torts of a substitute, employed by the servant himself who had neither the express nor the implied authority from the master to select such a substitute.
Appellant's contention seems to be, however, that inasmuch as appellee was operating under a certificate of public convenience and necessity issued both by the Interstate Commerce Commission and the Mississippi Public Service Commission, and the delivery here being made was over one of the authorized routes and although in an emergency and only for the isolated occasion, the person operating the automobile in the delivery of the film in the furtherance of appellee's certified business must be considered the agent or employee of appellee whoever that person was and regardless of the manner by which the particular tort-feasor happened to have been so engaged.
Conceding that this may be true where the injury has been to a passenger or the damage to freight, or where the injury has been to a member of the public when the carrier has authorized or contemplated the use of an inherently dangerous agency or instrumentality, there is no such case here; and no authority in point has been found for extending the liability further. The doctrine respondeat superior under established rules is already stringent enough, and we must decline to enlarge it in the absence of authority in the books for so doing.
We may use here a clarifying illustration: An express company is under duty, we will say, either by statute or by an established custom, to deliver all express packages to the addressed residence or place of business of each named consignee within the municipal limits. A valuable package has been received, but has been mislaid. The consignee has repeatedly and anxiously inquired by telephone, but has been told that no package has arrived. Two or three days after such inquiries the package is discovered, but after all the express trucks have departed for their last trip of the day. The express agent finds John Doe, whom the agent believes to be trustworthy, and he engages Doe to deliver the package immediately by automobile (Doe's automobile), and pays him to do so. Doe departs with the package, but on the way he turns it over to Richard Roe, who, in undertaking to complete the delivery, negligently collides with another automobile, injurying the occupants thereof and also breaking and destroying the express package. The express company would be liable to the consignee for the value of the package, but not to the third persons injured by Richard Roe.
Affirmed.